State ex rel. Ethell v. Hendricks

• Decision Date: 09 May 1956
• Docket Number: No. 34422,34422
• Citation: 135 N.E.2d 362,165 Ohio St. 217,59 O.O. 298
• Parties: , 59 O.O. 298 The STATE ex rel. ETHELL, Appellee, v. HENDRICKS, Appellant.
• Court: Ohio Supreme Court

Page 217

165 Ohio St. 217

135 N.E.2d 362, 59 O.O. 298

The STATE ex rel. ETHELL, Appellee, v. HENDRICKS, Appellant.

No. 34422.

Supreme Court of Ohio.

May 9, 1956.

Syllabus by the Court

1. Where the statutes relative to civil service (Sections 143.01 to 143.48, Revised Code) are applicable, a promotional examination for the office of chief of police of a city 'shall be in writing,' as to questions to and answers by the applicant.

2. No position above the rank of patrolman or regular fireman in a police or fire department of a city where the statutes relative to civil service are applicable shall be filled by any person unless he has first passed a competitive promotional examination which shall include in the total grade attainable:

(a) The grade on an examination composed of questions and answers, which shall be entirely in writing;

(b) The grade based on credit for seniority in service according to the formula set out in Section 143.16, Revised Code;

(c) The grade based on credit for efficiency or conduct and capacity in office.

3. Section 2733.06, Revised Code, empowers an individual, claiming in good faith and upon reasonable grounds to be entitled to a public office held and exercised by another, to expeditiously bring an action in quo warranto upon his own initiative in the name of the state, and Section 2733.08, Revised Code, provides that in such an action 'judgment may be rendered upon the right of the defendant, and also on the right of the person averred to be so entitled, or only upon the right of the defendant, as justice requires.'

4. The certification of an applicant as chief of police of a city is unlawful, where it is based on the result of a promotional examination which, as to questions to and answers by the candidate, was written and oral, contrary to law, and the person unlawfully certified is not entitled to retain such position.

This cause originated in the Court of Appeals for Hancock County with the filing by relator of a petition in quo warranto praying that respondent 'be required to show by what warrant he claims to have, use, exercise and enjoy' the office of chief of police of the city of Findlay.

The cause was submitted to that court for decision upon an agreed statement of facts which disclosed that in 1953 the civil service commission of Findlay adopted a rule that examinations in the civil service in that city should consist of a written examination and an oral examination what a 75 per cent weight being given to the written examination and a 25 per cent weight given to the oral examination; that on or about November 2, 1954, a vacancy arose in the office of the chief of police of that city; that thereafter the civil service commission of the city 'posted * * * a notice of examination' to fill that vacancy which stated that '75 per cent of said examination would be written and 25 per cent of the examination would be oral and interview'; that on December 1, 1954, said commission 'gave a written, competitive examination to fill the vacancy' in said office; that on December 3, 1954, the civil service commission 'did give, to relator and respondent, along with three other participants in said written examination, an oral examination'; that in grading the examination a 75 per cent weight was given to the written part of the examination and a 25 per cent weight was given to the oral part of the examination and the resulting grades were then, pursuant to the rules and regulations of the commission, multiplied by 0.9, and there was then added thereto by reason of Section 143.16, Revised Code, a seniority credit of 10 for relator and of 6.4 for respondent; that, upon completion of these examinations and the computation of grades, the commission certified to the mayor that respondent had received the highest rating and the mayor promoted respondent to the office of chief of police of the city; and that relator's grade on the written portion of said examination, including his credit for service in the police department, was the highest grade obtained by any person on the part of the examination but the grade of respondent which was the basis of his certification by the commission to the mayor was higher than that of relator solely because of the greater percentage received by respondent on the oral part of the examination.

Neither party has contended that any charter or ordinance provision should be considered in the determination of this cause. The applicable statutes so far as pertinent read:

Section 143.16, Revised Code (formerly Section 486-10, General Code).

'All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all, within certain limitations to be determined by the commission, as to citizenship, residence, age, sex, experience, health, habit, and moral character; provided any soldier * * * who has been honorably discharged * * * and is a resident of Ohio, may file with the commission a certificate of service and honorable discharge, whereupon he shall receive additional credit of twenty per cent of his total grade given in the regular examination in which he receives a passing grade. Such examination shall be practical in character, shall be written, or written and oral, as the commission determines, and shall relate directly to those matters which will fairly test the relative capacity fo the person examined to discharge the particular duties of the position for which appointment is sought. When appropriate, such examination may include physical examinations by a licensed physician, and where the examination is for a position requiring unusual and particular skill, it may include a test of manual skill.

'Applicants taking promotion examinations, which shall be in writing, shall receive credit for seniority, which shall be determined as follows: one per cent of the total grade attainable in such examination for each of the first four years of service, and six-tenths per cent of such total grade for each of the next ten years of service. The state civil service commission shall have control of all examinations, except as otherwise provided in sections 143.01 to 143.48, inclusive, of the Revised Code. No questions in any examination shall relate to political or religious opinions or affiliations.

'Reasonable notice of the time, place, and general scope of every competitive examination for appointment to a position in the civil service, except as otherwise provided in such sections, shall be given by the commission. Written or printed notices of every examination of the state classified service shall be sent * * *.' (Emphasis added.)

Section 143.24, Revised Code (formerly Section 486-15, General Code).

'Vacancies in positions in the classified service shall be filled in so far as practicable by promotions. The commission shall provide in its rules for keeping a record of efficiency for each employee in the classified service, and for making promotions in the classified service on the basis of merit, to be ascertained as far as practicable by promotional examinations, by conduct and capacity in office, and by seniority in service, and shall provide that vacancies shall be filled by promotion in all cases where, in the judgment of the commission, it is for the best interest of the service. All examinations for promotions shall be competitive. In promotional examinations, efficiency and seniority in service shall form a part of the maximum mark attainable in such examination. In all cases where vacancies are to be filled by promotion, the commission shall certify to the appointing authority only the name of the person having the highest rating. The method of examination for promotions, the manner of giving notice thereof, and the rules governing the same shall be in general the same as those provided for original examinations, except as otherwise provided in sections 143.01 to 143.48, inclusive, of the Revised Code.' (Emphasis added.)

Section 143.30, Revised Code (formerly Section 486-19, General Code).

'* * * all authority granted to the state civil service commission with respect to the service under its jurisdiction shall, except as otherwise provided by sections 143.01 to 143.48, inclusive, of the Revised Code, be held to grant the same authority to the municipal civil service commission with respect to the service under its jurisdiction. * * *'

Section 143.34, Revised Code (formerly Section 486-15a, General Code).

'* * * No position above the rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he has first passed a competitive promotional examination. * * * Whenever a vacancy occurs in a position above the rank of patrolman or fireman in a police or fire department, and there is no eligible list for such rank, the municipal civil service commission shall, within sixty days of such vacancy, hold a competitive promotional examination. After such examination has been held and an eligible list established, the commission shall forthwith certify to the appointing officer the name of the person receiving the highest rating. Upon such certification, the appointing officer shall appoint the person so certified within thirty days from the date of such certification. * * *' (Emphasis added.)

The Court of Appeals held that the civil service commission of the city 'was without authority to adopt a rule to provide for an oral examination in addition to the written examination,' and that, since the relator's grade on the written portion of the examination, including his credit for service was the highest grade obtained by any person taking that portion of the examination, the relator was entitled to certification for appointment to fill the vacancy in the office of chief of police and the respondent was unlawfully holding that office. The judgment of the court thereupon ordered the ouster of respondent from that office and ordered...